No scrutiny

JUSTICE BREYER moves on to make a broad jurisprudential
point: He criticizes us for declining to establish a level
of scrutiny for evaluating Second Amendment restrictions.
He proposes, explicitly at least, none of the traditionally
expressed levels (strict scrutiny, intermediate scrutiny,
rational basis), but rather a judge-empowering “interestbalancing
inquiry” that “asks whether the statute burdens
a protected interest in a way or to an extent that is out of
proportion to the statute’s salutary effects upon other
important governmental interests.”...

...since this case represents this
Court’s first in-depth examination of the Second Amendment,
one should not expect it to clarify the entire field,
any more than Reynolds v. United States, 98 U. S. 145
(1879), our first in-depth Free Exercise Clause case, left
that area in a state of utter certainty. And there will be
time enough to expound upon the historical justifications
for the exceptions we have mentioned if and when those
exceptions come before us.

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K-Romulus

June 26, 2008, 11:41 AM

yeah, but see pg.56 n27:
"Obviously (rational basis) could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms . . . If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect."

usmarine0352_2005

June 26, 2008, 11:51 AM

"Obviously (rational basis) could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms . . . If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect."

Whats this mean in layman's terms?

AJ Dual

June 26, 2008, 12:01 PM

That the 2nd Amendment obviously supports (enumerates)the PRE-EXISTING right to keep and bear arms for self-defense.

So if the constitutional prohibition on "ludicrous laws" were sufficient to protect RKBA, the 2A would never have been needed. Or conversely, if it were blatantly logical that there was no need for RKBA, the 2A would be invalid as an "irrational law".

And that's actualy touching on the origins of the slightly clumsy wording of the 2A IMO. It was kind of an afterthought during the constitutional convention because many of the framers DID think that RKBA was "obvious" and did not need enumeration.

Then the preamble to the 2A got added in there because it got dragged into the larger federalist/antifederalist fight over states rights.

security6

June 26, 2008, 12:08 PM

The court didn't state a level of scrutiny because they didn't have to. The case was a lot closer than any of us thought it would be, and I think Scalia kept it narrow to get Kennedy's vote.

I think the 2nd amendment will almost certainly get strict scrutiny because it is an easy argument that it is a fundamental right (fundamental rights get strict scrutiny).

Cosmoline

June 26, 2008, 12:15 PM

If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect."

The reference is to the basic principle that all federal laws passed via the commerce clause (which is almost all of them) must have some rational basis in order to be Constitutional. But this is an extremely easy hurdle to get past. It does not mean they have to be good laws, or even that they have to make much sense. But they have to have some bare minimum rational basis. If that's all that the Second required it would be redundant, since that much is required for ANY law.

telkontar

June 26, 2008, 12:26 PM

If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect."

Scalia says the 2A is there for a specific reason. "Rational basis" scrutiny means that a law would be consitutional as long as there is some rational basis for its existence. [Eg., town council thinks citizens are "safer" with gun ban, therefor the law has a rational basis and survives Constitutional scrutiny.] Scalia's argument here is that if the test were rational basis, the 2nd Amendment would be meaningless.

Because no level of scrutiny was decided in Heller, Scalia at least throws out rational basis.

Intermediate scrutiny is met if a regulation involves important governmental interests that are furthered by substantially related means. One general area of intermediate scrutiny is "time, place, and manner" restrictions on free speech (only minimal restrictions are allowed for speech which is an enumerated right, as the RKBA is). I don't remember law school well enough to postulate how intermediate scrutiny would apply.

Sebastian the Ibis

June 27, 2008, 12:38 AM

In layman's terms

The level of scrutiny determines how close a court will look into the policy behind some law to see if it violates the constitution.

Rational Basis, is used for most laws. Generally if the government can come up with any reason why the law is necessary it will be upheld. i.e. No trucks longer than Xlbs can do Y. + necessary to protect bridges = Ok.

Strict Scrutiny, is usually used when something suspicious is going on with the law. Racial classifications is the best example. If there is something suspicious- then the court will scrutinize it strictly to make sure that the law is absolutely necessary to carry out a significant public policy, and there are no alternatives.

Intermediate is somewhere in the middle.

Bartholomew Roberts

June 27, 2008, 07:36 AM

I also thought it was nice how Scalia pointed out that the Second was an enumerated right and that the D.C. law didn't pass any test that had traditionally been applied to enumerated rights (rights expressly protected in the Constitution).

That little blurb alone should help put some teeth in Second Amendment protections. At the same time, Scalia avoided a sensitive area that might have caused an already close decision to slide the wrong way.

TX1911fan

June 27, 2008, 10:49 AM

It is clear from reading this opinion that Scalia had to walk a tightrope to keep Kennedy on board. It was a good first step, and if we can get a President who will appoint decent Justices, it will get bolstered with future rulings. Go the other way and we're screwed.

Crashola

June 27, 2008, 11:36 AM

It certainly is interesting to read the decision and try to decide what level of review courts will need to use for Second Amendment cases. The decision doesn't give legislatures much of a roadmap for the future. I think the Court would be hard-pressed to apply a rational basis review to an enumerated right. On the other hand, I wonder if the Court could really balance an application of strict scrutiny while noting that concealed carry, felon possession laws, etc. pass constitutional muster. My worry is that to do so would water down what it means to apply strict scrutiny. My guess is that it will eventually get some kind of intermediate scrutiny.

AJ Dual

June 27, 2008, 12:14 PM

I also thought it was nice how Scalia pointed out that the Second was an enumerated right and that the D.C. law didn't pass any test that had traditionally been applied to enumerated rights (rights expressly protected in the Constitution).

That little blurb alone should help put some teeth in Second Amendment protections. At the same time, Scalia avoided a sensitive area that might have caused an already close decision to slide the wrong way.

Scalia peppered the whole thing with allusions to all the stuff we'd have liked to have seen in the RKBA wet-dream version, 14th Amendment incorporation, even rolling back huge chunks of NFA '34 with his musings on Miller!

Unfortunately it's all in the dicta, and not the actual decision, as others have said, ostensibly it was to keep Kennedy on board.

A careful reading reveals Justice Scalia did everything he could for us and still keep the majority. He deserves our thanks.

rocinante

June 27, 2008, 12:17 PM

Wasn't part of the panic in the Solicitor General's brief over the strict level of scrutiny the lower court used and wanted the SCOTUS to flip it back to that judge with instructions to use a much much lower standard? Does that have some bearing?

Seems Scalia demolished the means testing type of scrutiny pretty well. I would think any judge who gets a 2nd amendment cause would be compelled to take a very cautious approach to stepped on it now.

Jdude

June 27, 2008, 01:07 PM

A careful reading reveals Justice Scalia did everything he could for us and still keep the majority. He deserves our thanks.

This is exactly how I interpreted it as well.

ctdonath

June 27, 2008, 01:08 PM

Scalia demolished the means testing type of scrutiny
Seems he replaced it with commonality testing, which is pretty perverse.

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